Skittles, Iced Tea, and a Death Sentence

Photograph via Wikipedia

I. Introduction

On February 26, 2012, the Sanford, Florida, 911 dispatcher received a call from neighborhood watch captain George Zimmerman about “a suspicious guy” in Zimmerman’s gated community. Read in a vacuum, Zimmerman’s ongoing updates to the dispatcher give the impression that Zimmerman feared that his life could be in danger: “[t]his guy looks like he’s up to no good or he’s on drugs or something. It’s raining, and he’s just walking around looking about. Now he’s coming towards me. He’s got his hand in his waistband. And he’s a black male . . . something’s wrong with him. Yup, he’s coming to check me out. He’s got something in his hands. I don’t know what his deal is.” Following the call, cries rang out, shots were fired, and George Zimmerman killed seventeen-year-old Trayvon Martin, an unarmed teen holding nothing but a bag of Skittles and some iced tea.

The answer? He might not have broken the law. And that fact is representative of a disturbing, and growing, trend in the passage of state laws that provide expansive protection to anyone who claims they killed in self-defense. Although invariably framed by their supporters as necessary to protect “the rights of the victim,” these laws encourage vigilantism, provide unwarranted protection to actual criminals, and make all of us less safe.

II. The Law in Question

The now-infamous Florida“Stand Your Ground” law, which boasts counterparts in almost two dozen states, reads as follows:

A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.[1]

Consider the above transcript of Zimmerman’s 911 call. According to Zimmerman, he saw someone who was up to no good, someone who might have been on drugs, who was coming to check him out, who had something in his hands. It was nighttime; Trayvon was wearing a hoodie; Zimmerman was part of the neighborhood watch. What’s to say that Zimmerman didn’t “reasonably believe it was necessary . . . to prevent death or great bodily harm” when he shot Trayvon, and thus was not guilty of any crime under Florida law?

III. The Legal Reactions

Not so fast, says Dennis Baxley, the Republican Florida State Representative who sponsored the Stand Your Ground law. Baxley explains that the law does not apply in this case because “Zimmerman’s unnecessary pursuit and confrontation of Martin elevated the prospect of a violent episode, and does not seem to be an act of self defense as defined by the law.” Instead, says Baxley, “[t]he Stand Your Ground law, as passed, clarified that individuals are lawfully able to defend themselves when attacked and there is no duty to retreatwhen an individual is attacked on his property.”

I highlight the final portion of this sentence for a reason. The Florida Stand Your Ground Law, and others like it, have been cited as necessary to ensure that citizens who are victims of a home invasion, or otherwise subjected to the threat of bodily harm in their own home, are permitted to use deadly force against the intruder: the so-called “Castle Doctrine.” Indeed, Representative Baxley himself states that he originally sponsored the law to ensure that Floridians who had shot and killed looters that had broken into their houses in the aftermath of hurricanes were not charged with any crime.

But, while Baxley assumes that the intention of the law is clear cut, there is one small problem with his explanation, particularly with the section I highlighted: as rightly pointed out by Adam Winkler of the UCLA School of Law, an expert on the Second Amendment (and my own constitutional law professor), by its plain language, the relevant provision of the Florida Stand Your Ground law is not limited to home invasions. Let’s break it down piece-by-piece: it allows (1) a person who is not engaged in unlawful activity and (2) who is “where he or she has a right to be” to (3) use deadly force (4) without a duty to retreat (5) if he or she has a reasonable belief that deadly force is necessary to prevent death or great bodily harm to (6) himself or herself or (7) another person or to (8) prevent the commission of a forcible felony. That’s a lot to digest . . . but no matter how you read it, what it absolutely does not say, regardless of Representative Baxley’s post hoc assertions to the contrary, is that it is limited to attacks on a person’s real property. In other words, the law gives you license to kill whether you are in your home, at the mall, or on the streets of a gated community.

IV. A Troubling History

What is particularly problematic about the 2005 Florida Stand Your Ground law (and its counterparts nationwide) is that it upends decades of legal developments specifically designed to strike a balance between the right to self-defense and the prevention of vigilante justice. As former prosecutor Gregory O’Meara notes, the statutes and common law governing the self-defense doctrine in most states require the person claiming the defense to prove that he reasonably thought that he (or a third party) was unlawfully under imminent deadly attack, that the deadly force taken in response to this attack was necessary to stop the attack, that the defender acted solely with the intent to thwart the unlawful attack, and, in many jurisdictions, that it was unsafe for the defender to have withdrawn from the confrontation before using deadly force. This defense applies “even if the defender is completely wrong about the situation but his mistake is reasonable about either the imminence of the deadly attack or the necessity of his forceful response.” Finally, the question of reasonableness is usually one for a jury, ensuring that the community is (at least nominally) given the opportunity to determine whether an individual was justified in his use of deadly force. Taken as a whole, the defense is aimed at preventing the use of gunfire as conflict resolution and to ensure some legal accountability for people whose objectively unreasonable beliefs prompt them to kill first and ask questions later.

But this is no longer the case for many of our states, including Florida, which expanded their gun laws in such a way that allows people to shoot without having to prove that they were actually in danger. As Professor Winkler notes, Baxley’s explanation that the law does not apply to people who seek out or escalate a confrontation rings hollow because according to the law’s plain language, “[s]o long as someone reasonably thinks he or someone else is in danger, he can shoot to kill, regardless of whether the shooter is the one who initiated the hostile confrontation.” The law also does away with the duty to retreat and, unlike laws in other jurisdictions, does not require that the person have actually witnessed someone committing a felony before shooting at them. Perhaps most egregious, a separate provision of the Florida law removes the question of reasonableness from the jury altogether: such an individual is (almost always) completely immune from civil or criminal liability, and cannot even be arrested unless the police find probable cause that the person used unlawful force. Rather than protecting the rights of homeowners, according to Florida law enforcement officials, the law has resulted in chaos: a nearly threefold increase in justifiable homicides and acquittals in cases of road rage and gang violence.

The death of Trayvon Martin reemphasizes that sweeping stand-your-ground laws, like the one in Florida, provide an unwarranted opportunity for individuals to claim self-defense under manifestly unreasonable circumstances. Pimped by pro-gun lobbyists,[2] these laws are by and large a part of the gun rights movement’s push to allow people to carry firearms essentially anywhere. The laws blur the line between victim and aggressor, encourage a culture of vigilantism, and are ambiguous to the point of absurdity. In Florida, even if you initiate or escalate a confrontation, you can kill anytime, anywhere, and without a thought of retreat so long as you “reasonably” believe your life is being threatened (say, by an unarmed teenager carrying Skittles and iced tea); virtually everyone is now at the mercy of the “reasonable beliefs” of anyone with a weapon and an attitude.

V. Justice is Not Served

At the time the Florida law was being debated, Florida governor Jeb Bush described it as “a good, common-sense, anti-crime issue.” Its sponsor, Representative Baxley, insists that the law was necessary to clarify an individual’s legal rights during a home invasion. Wayne LaPierre, executive vice president of the National Rifle Association, said the Florida law was needed to “empower the crime victim” because “[g]ood people make good decisions.” When George Zimmerman shot Trayvon Martin, he was not in his home, he was the victim of no crime, he was making the worst of all possible decisions, and he was standing no ground. He also may never be arrested for his actions. Is that what passes for justice in America?

[1] This is the portion of the law that arguably applies to Zimmerman. Other provisions of the law do apply specifically to home invasion situations, as Florida Republican sponsors argue was its original intent and the limits of its legal protections.

Sam Ennis is an attorney working for a national law firm that represents Indian tribal governments, Alaskan Native corporations, Native American-owned health corporations, regional tribal confederations and Native American health and social service providers. The views and opinions in this article do not represent those of his firm or its clients.